United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
M. FURMAN, United States District Judge
Regina Smith, proceeding pro se, brings this action
against her former employer, Bronx Community College
Association (“BCCA”), alleging age discrimination
in violation of the Age Discrimination in Employment Act of
1967 (“ADEA”), 29 U.S.C. § 621, et
seq., as well as state and local law. Smith, who is
approaching sixty-five years old, worked as an office manager
at BCCA's Office of Student Life (“OSL”) from
1986 to 2015, when she was advised that her job would not be
renewed. (Docket No. 21 (“Am. Compl.”)
¶¶ 10-11, 22-23, Ex. D). Smith alleges that she
received consistently positive performance reviews until July
2014, when Fenix Arias - who had become Interim Director of
OSL six months earlier - gave her a negative evaluation.
(Id. ¶¶ 12, 16-17). In January 2015, a new
Interim Director gave her another positive evaluation - and
recommended that her employment be continued. (Id.
¶ 18). In early June 2015, however, Arias was reinstated
as Interim Director; shortly thereafter, she advised Smith by
letter that she was “recommending” to the
BCCA's Interim President that Smith “not be
re-appointed for the 2015-2016 academic year.”
(Id. Ex. D). A few days later, the Interim President
“abruptly informed” Smith that she was
terminated. (Id. ¶ 22).
now moves, pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, to dismiss Smith's Amended Complaint.
(Docket No. 24). To survive a motion to dismiss, “a
plaintiff asserting an employment discrimination complaint
under the ADEA must plausibly allege that adverse action was
taken against her by her employer, and that her age was the
‘but-for' cause of the adverse action.”
Marcus v. Leviton Mfg. Co., 661 F. App'x 29,
31-32 (2d Cir. 2016) (summary order) (citing Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d
Cir. 2015)). The plaintiff need not prove discrimination, or
even allege facts establishing every element of a prima
facie case of discrimination, but she “must plead
facts that give ‘plausible support to a minimal
inference' of the requisite discriminatory
causality.” Id. at 32 (quoting Littlejohn
v. City of New York, 795 F.3d 297, 310-11 (2d Cir.
2015)). More specifically, the plaintiff “must supply
sufficient factual material, and not just legal conclusions,
to push the misconduct alleged in the pleading beyond the
realm of the ‘conceivable' to the
‘plausible.'” Id. (citing
Vega, 801 F.3d at 84). Where, as here, a plaintiff
is proceeding pro se, her pleadings “must be
held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (internal quotation marks omitted).
“Nonetheless, a pro se litigant must still
state a plausible claim for relief. Put another way, the
Court's duty to liberally construe a plaintiff's
complaint is not the equivalent of a duty to re-write
it.” Thomas v. N.Y. City Dep't of Educ.,
No. 15-CV-8934 (JMF), 2016 WL 4544066, at *2 (S.D.N.Y. Aug.
31, 2016) (internal quotation marks, citation, and
those standards here, Smith's ADEA claim fails as a
matter of law. Notably, Smith does not allege that Arias or
anyone else at BCCA treated younger employees more favorably,
that she was replaced with an employee outside of the
protected class, or that there is evidence of a pattern of
adverse employment actions taken against older employees.
Instead, Smith's sole basis for accusing BCCA of
discrimination on the basis of age is a conclusory assertion
that Tami Hepbourn and Yvonne Erazo-Davila - two members of
Arias's support staff, who supervised Smith and reported
directly to Arias - “regularly demeaned” her and
“treated [her] poorly” and the more specific
allegation that, on a single occasion in November 2014, she
overheard Hepbourn telling Erazo-Davila that she was
“too slow” and “lazy” and that she
“wasn't doing [her] job.” (Am. Compl. ¶
13-14). But stray remarks - particularly where, as here,
those remarks were not facially discriminatory, were not made
by the relevant decisionmakers, and were made well before the
alleged adverse employment action - are not enough to create
an inference of discrimination. See, e.g.,
Blundell v. Nihon Kohden Am., No. 15-CV-1503
(GTS)(DEP), 2017 WL 318842, at *9 (N.D.N.Y. Jan. 23, 2017)
(citing cases); Szewczyk v. City of N.Y., No.
15-CV-918 (MKB), 2016 WL 3920216, at *11 (E.D.N.Y. July 14,
2016) (same); see also, e.g., Belardo v. Con-Way
Transp. Servs., Inc., 02-CV-5406 (SLT)(SMG), 2005 WL
885016, at *4 (E.D.N.Y. Mar. 28, 2005) (concluding, on
summary judgment, that certain comments directed at the
plaintiff - for example, referring to him as “old
man” - were insufficient to raise an inference of
discrimination because they were not facially discriminatory
and “were made by individuals who had no involvement
whatsoever in [p]laintiff's termination”).
sure, Smith does allege that she found Hepbourn's remarks
“troubling” and “perceived” them
“as indicative of animus towards [her] because of
age.” (Am. Compl. ¶ 14). It is well established,
however, that a plaintiff's subjective belief that she
was the victim of discrimination, no matter how strongly
felt, is insufficient to satisfy the burden to plead facts
that could plausibly support an inference of discrimination.
See, e.g., Jones v. City of N.Y., No.
14-CV-0826 (CBA)(RLM), 2015 WL 502227, at *5 (E.D.N.Y. Feb.
5, 2015) (noting that while the plaintiff “may well
have subjectively believed that defendants' comments
about her weave were tied to her skin color, that is plainly
insufficient” (citation omitted)); Mohawk v.
William Floyd Sch. Dist., 13-CV-2518 (JS)(GRB), 2014 WL
838162, at *3 (E.D.N.Y. Mar. 3, 2014) (dismissing a claim
where the plaintiff “fail[ed] to allege any facts,
besides his own subjective belief, that plausibly suggest
that . . . [his] termination [was] in any way connected to
his race, color, or national origin”); Brodt v.
City of N.Y., 4 F.Supp.3d 562, 568 (S.D.N.Y. 2014)
(“[A] plaintiff's feelings and perceptions of being
discriminated against are not evidence of
discrimination.” (internal quotation marks omitted)).
In short, Smith does not allege facts that could remotely,
let alone plausibly, support “a minimal inference of
‘but-for' causality” between her age and her
termination. Marcus, 661 F. App'x at 32.
Accordingly, her ADEA claim must be dismissed.
matters remain. First, the Court declines to grant Smith
leave to amend her ADEA claim sua sponte. Smith was
previously granted leave to amend to cure the deficiencies
raised in BCCA's first motion dismiss, and was explicitly
cautioned that she “w[ould] not be given any further
opportunity to amend the complaint to address issues raised
by the motion.” (Docket No. 16). Additionally,
Plaintiff “has not requested permission to file a
Second Amended Complaint, nor has [s]he given any indication
that [s]he is in possession of facts that would cure the
problems identified in this opinion.” Clark v.
Kitt, No. 12-CV-8061 (CS), 2014 WL 4054284, at *15
(S.D.N.Y. Aug. 15, 2014). Second, the Court declines to
exercise supplemental jurisdiction over Smith's state and
local claims. Although the Court has discretion to exercise
supplemental jurisdiction pursuant to Title 28, United States
Code, Section 1367, the Supreme Court and the Second Circuit
have made clear that, as a general rule, “when the
federal claims are dismissed the ‘state claims should
be dismissed as well.'” In re Merrill Lynch
Ltd. P'ships Litig., 154 F.3d 56, 61 (2d Cir.1998)
(quoting United Mine Workers v. Gibbs, 383 U.S. 715,
726 (1966)). Here, there is no basis to depart from that
general rule given, among other things, the relatively early
stage of the case. Accordingly, the Amended Complaint is
dismissed in its entirety.
Court certifies, pursuant to Title 28, United States Code,
Section 1915(a)(3), that any appeal from this Memorandum
Opinion and Order would not be taken in good faith, and
in forma pauperis status is thus denied. See
Coppedge v. United States,369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to terminate Docket No. ...